President Donald J. Trump v Orbis Business Intelligence Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn DBE,Mrs Justice Steyn |
| Judgment Date | 01 February 2024 |
| Neutral Citation | [2024] EWHC 173 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: KB-2022-004403 |
[2024] EWHC 173 (KB)
THE HON. Mrs Justice Steyn DBE
Case No: KB-2022-004403
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugh Tomlinson KC and Kirsten Sjøvoll (instructed by Level Law) for the Claimant
Antony White KC and Edward Craven (instructed by Bristows LLP) for the Defendant
Hearing date: 16 October 2023
Approved Judgment
This judgment was handed down remotely at 10.00am on 1 February 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HON. Mrs Justice Steyn DBE
A. Introduction
This is the third case to come before this court concerning the so-called “ Steele Dossier” (‘the Dossier’) which was published by BuzzFeed Inc (‘BuzzFeed’) on its news website on 10 January 2017, under the headline “ These Reports Allege Trump has Deep Ties to Russia” (‘the BuzzFeed Article’). The first case was Aven v Orbis Business Intelligence Ltd [2020] EWHC 1812 (QB), where the claims brought against Orbis Business Intelligence Ltd (‘Orbis’) were, as in this case, for inaccuracy under data protection law. The second case was Gubarev v Orbis Business Intelligence Ltd [2021] EWHC 2912 (QB), [2021] EMLR 5, a claim for libel brought against both Orbis and Christopher Steele.
The Dossier comprised 17 intelligence memoranda, of which all but one were prepared prior to the United States presidential election on 8 November 2016. Aven concerned one of the pre-election memoranda (memorandum 112, dated 14 September 2016), whereas Gubarev concerned the final memorandum (memorandum 166, referred to in Gubarev as “ the December Memorandum”). In this data protection claim, the Claimant complains about the processing of his personal data in two of the pre-election memoranda, namely:
i) “ Company Intelligence Report 2016/080: US Presidential Election: Republican Candidate Donald Trump's activities in Russia and compromising relationship with the Kremlin”, dated 20 June 2016 (‘Memorandum 080’); and
ii) “ Company Intelligence Report 2016/113: Russia/US Presidential Election — Republican Candidate Trump's prior activities in St Petersburg”, dated 14 September 2016 (‘Memorandum 113’).
References in this judgment to ‘the Memoranda’ are to these two memoranda: 080 and 113.
This judgment resolves two applications. The Claimant applies to amend his Claim Form pursuant to the Civil Procedure Rules (‘CPR’) 17.1(2)(b) or 17.4(2) (‘the Amendment Application’). In essence, he seeks to add reference to a claim under the Data Protection Act 1998 (‘the DPA 1998’) to the existing details identifying a claim for breach of the UK General Data Protection Regulation (‘the UK GDPR’) and seeking remedies pursuant to the UK GDPR and the Data Protection Act 2018 (‘the DPA 2018’). The Defendant contests the Amendment Application, relying on the expiry of the relevant limitation period.
The Claimant's application notice also included an application to remove Mr Steele as a party to these proceedings, pursuant to CPR 19.4(1), in circumstances where he was named in the Claim Form (but not the Particulars of Claim) as the Second Defendant. That application was uncontentious, and it is unnecessary to address it further: I have granted the permission sought. Accordingly, the sole Defendant is Orbis.
The Defendant applies for an order striking out the Claim Form and Particulars of Claim on the grounds that they disclose no reasonable grounds for bringing the claim and/or they are an abuse of the court's process (pursuant to CPR 3.4(2)(a) and/or (b)), and/or for summary judgment on the grounds that the claimant has no real prospect of succeeding on the claim and there is no other compelling reason why the case should be disposed of at trial (pursuant to CPR 24.2(a)(i) and (b)). For convenience, I will refer to this as ‘the Strike Out Application’.
I have concluded, for the reasons explained below, that the Amendment Application should be refused, and the claim should be summarily dismissed. It is important to emphasise that the Defendant has not contended that the Claimant would have no real prospect of establishing at trial that the personal data complained of (identified in paragraph 25 below) is inaccurate. The Claimant's evidence is that the allegations are “ wholly untrue” (Trump 1 §14–15). I have not considered, or made any determination, as to the accuracy or inaccuracy of the Memoranda.
B. The parties, background, and procedural history
The parties
The Claimant served as the President of the United States from 20 January 2017 until 20 January 2021. When Memorandum 080 was created he was the presumptive Republican nominee for the presidency and by the time Memorandum 113 was prepared he had formally secured the Republication Party nomination.
Orbis is an English company, incorporated in 2009, which holds itself out as providing strategic insight, intelligence, and investigative services to clients around the world. Orbis was established by two British former public officials, Mr Steele and Christopher Burrows. Mr Steele is a director and principal of Orbis, and in that capacity he was the main if not sole author of the Dossier.
Creation and dissemination of the Dossier
In June 2016, the Defendant was engaged by Fusion GPS (‘Fusion’), a consultancy based in Washington DC, acting on behalf of US law firm Perkins Coie, to collect and provide intelligence concerning any Russian efforts to influence the 2016 US Presidential election and any links that might exist between Russia and the Claimant.
Pursuant to Fusion's instructions, Orbis produced 16 pre-election memoranda. Memorandum 080 was the first memorandum to be produced. It was provided to Fusion on or around the day it was prepared, that is, 20 June 2016. Memorandum 113 was produced, and provided to Fusion, on or around 14 September 2016. Mr Steele provided these two memoranda to the Federal Bureau of Intelligence (‘the FBI’) in early July 2016 and in September 2016, respectively (together with other memoranda that formed part of the Dossier).
Both memoranda (amongst others) were disclosed by Mr Steele on various dates in November 2016 to (i) Strobe Talbott, a former US Deputy Secretary of State who was, at the time, the President of the Brookings Institute in Washington DC and a member of the Council on Foreign Relations; (ii) a UK national security official; and (iii) David Kramer, an aide to Senator John McCain who was at the time Chair of the US Senate Armed Services Committee and a member of the Senate Committee on Intelligence.
The Claimant states, in a witness statement dated 27 July 2023, that he was first made aware of the existence of the Dossier by then FBI Director James Comey on 6 January 2018, at a meeting that took place during the transition period following his election.
Publication of the Dossier by BuzzFeed
BuzzFeed published the Dossier, including the two memoranda relied on in this claim, on 10 January 2017. The Dossier has been accessible by the world at large since then. In Aven, Warby J (as he then was) found that Mr Kramer gave BuzzFeed access to the Dossier between late November 2016 and 10 January 2017, thereby causing or contributing to the publication of the BuzzFeed Article ( Aven, [52]). In both Aven and Gubarev, following trials, Warby J held that Orbis was not responsible for publication of the BuzzFeed Article. In this claim, the Claimant accepts that the Defendant is not responsible in law for the publication of the Memoranda by BuzzFeed.
The RICO case
On 24 March 2022, the Claimant brought proceedings against Orbis and Mr Steele (and about 30 other defendants) in the US District Court for the Southern District of Florida. The claim against both Orbis and Mr Steele alleged conspiracy under the Racketeer Influence and Corrupt Organizations Act (‘RICO’) and conspiracy to commit injurious falsehood. In addition, the claim against Orbis alleged respondeat superior/vicarious liability, while the claim against Mr Steele alleged injurious falsehood and conspiracy to commit malicious prosecution. I shall refer to this, as the parties have done, as ‘the RICO case’. The US District Court dismissed the claim in its entirety against all defendants on 8 September 2022. The Claimant is appealing that decision.
Claim Form (protectively) issued
On 26 October 2022, without first engaging in pre-action correspondence, the Claimant issued, and the court sealed, a claim form (‘the Claim Form’). Mr Lowles, the Claimant's solicitor, has explained that:
“At the point at which my firm was instructed by the Claimant, it was understood that the processing of the Claimant's personal data by the Defendants was ongoing. Despite this, it was recognised that it was possible that the Defendants would seek to raise issues relating to limitation given it was known that the Defendants were first commissioned to compile the intelligence reports that would become known as the Steele Dossier in or around June 2016 and the Steele Dossier became known to the world at large when published on the BuzzFeed website on 10 January 2017.
In these circumstances, a protective claim form was issued and sealed on 26 October 2022…
Having issued the Original Claim Form, the Claimant was required to serve his claim on the Defendant by 25 February 2023.”
The Claim Form gave the following “ Brief details of claim”:
“This is a claim for breach of Article 5(1)(d) of the UK General Data Protection Regulation (‘UK GDPR’) arising from the processing of inaccurate personal data of which the Claimant is the data subject:
(1) Compensation pursuant to Article 82 of the UK GDPR and s.168 and 169 of...
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...out of the same or substantially the same facts. In this regard they rely upon what was said in Trump v Orbis Business Intelligence [2024] EWHC 173 (KB) at [76]: “The new claim does not arise out of the facts on which the old claim was based if, in order to prove it, new facts have to be a......